Part 4 deals with the inevitable ‘Laura Norder’ (Law and Order) reaction. The ‘Mercury’ reports that following this case (and others) that ‘Minimum mandatory sentences established for bashing police are set to be extended in Tasmania to include other emergency workers, including paramedics’ (Patrick Billings ‘Paramedic punched in the face’ Mercury 13 October 2015). The article goes on to quote Health and Community Sector Union secretary Tim Jacobson who says “Paramedics are going into people’s homes every day of the week and they … need to feel safe doing that.”

The problem with these sorts of reforms is that we know, before they are introduced, they are not going to achieve the desired objective of allowing paramedics to feel safe. First, sentences, whether harsher or mandatory, only apply after the offence has been committed. The paramedic still has to be assaulted before the penalty can be applied. The argument that harsher penalties will cause people to think twice has never worked. Mandatory death penalties and transportation across the seas has not prevented crime. And people who are affected by illness, injury or drugs and who are frightened – perhaps facing the worst day of their life – aren’t really going to think ‘I was going to bash this paramedic but now I realise that the minimum penalty is xx, I don’t think I will’. The idea that people chose to commit crime on the basis of a cost/benefit calculation is discredited.

Even if people do hit a paramedic (or a police officer, or anyone else) it does not mean they are guilty of an assault. To make this personal, in about 2007 I had a serious motor cycle accident with associated head injury and hypoxia. I don’t recall the event at all but I’m told that when paramedics arrived I kept trying to get up. Later in Tamworth hospital I’m told I was belligerent and ‘kept trying to hit people’. Would I be guilty of assault? I don’t think so.

To be guilty of assault the defendant has to intentionally apply force to the victim. The first issue then is whether or not their actions are voluntary. If you are acting ‘without there being any will to perform that act’ then you cannot be guilty of the offence charged (Model Criminal Code Officers Committee, Model Criminal Code Report (1992) p 13).

If the cause of the involuntary action is a ‘disease of the mind’ then the accused is raising the defence of ‘insanity’ but if the cause is ‘a result of operations of event up a sound mind’ then the issue is non-insane automatism (R v Falconer (1990) 171 CLR 30). If the issue is ‘insanity’ the accused must prove their case ‘on the balance of probabilities’ and leads to a special verdict of ‘not guilty of the grounds of insanity’ and sees the accused diverted to the mental health system. If the issue is ‘non-insane automatism’ the outcome is an acquittal. To return to my situation, a high speed impact with associated head injury and hypoxia would take me into ‘non-insane automatism’.

It can be argued that a person with a drug addiction has an underlying mental illness and perhaps ‘insanity’ is the more appropriate approach (which I would add, is not a ‘get out of jail free’ card as the offender could be subject to more stringent controls under relevant mental health legislation than they would face under the criminal justice system).

The point is, however, if a person strikes out because of their injury or illness, whether it’s a head injury, epilepsy, intoxication or the like, if they are acting independently of their will then they will not be guilty of an assault. It should be noted that in – Bonde v Morrison [2015] TASMC 9 the defendant did try to argue that he was not guilty on the grounds that his actions were not voluntary. This was rejected by the Magistrate (see [17]). If that argument had been accepted he would not have been guilty of assaulting either the paramedic or the police officer.

If the accused’s actions are voluntary there are many defences to assault. In particular, as in Bonde v Morrison, there is self-defence. We are allowed to use ‘reasonable force’ to defend ourselves. The law is concerned with an offender’s criminality not the consequences of his or her actions. That is why attempted murder carries the same penalty as murder though the consequences are clearly different. Because the court is trying to determine the accused’s culpability, their willingness to break the law, they are entitled to be judged against the situation as they believe it to be. That can be summed up as ‘an honest and reasonable belief in facts which, if true, would make the act innocent’ is a defence (this oversimplifies the position but is sufficient for this discussion, see however Michael Eburn, Roderick Howie and Paul Sattler Hayes and Eburn Criminal Law and Procedure in NSW (4th ed, 2013, Lexis/Nexis) pp56-68). So if you honestly believe you are going to be attacked and you respond in self-defence you have a legal defence even if it turns out that the ‘victim’ was not going to attack you.

So a patient who misunderstands what is going on and who is doing what to whom may well have a defence even if the reason for their confusion is their intoxication or head injury. It will also be a defence if what they believed was they were being attacked by aliens, not assisted by paramedics.

There have been legal reforms that are relevant here. For example in NSW the Crimes Act 1900 (NSW) provides that ‘self-induced’ intoxication cannot be relevant to determine if a person intended to hit the victim (s 428D) or whether their actions were voluntary (s 428G). Those sections are not however relevant where the person is acting due to head injury, mental illness or intoxication that is not ‘self-induced’. NSW also lead the way with the ‘one punch’ law reform so that now there is a minimum mandatory sentence (8 years imprisonment) for assault causing death if the offender is intoxicated (s 25B), but not if the offender is a sober jerk. And one might consider that a person who assaults someone in the cold light of day, with a clear mind, is a worse criminal than one affected by alcohol.

There are other reasons to object to this type of law reform. If mandatory sentences, or even ‘higher’ sentences are imposed for assaulting police or paramedics, people who are not in that category get a different level of justice. What if, for example, the person assaults a fire fighter, a Good Samaritan who stepped up to help and a paramedic – why is there a higher penalty for assault the paramedic and not the others? And there will then be the inevitable question of who is a ‘paramedic’ – see NSW workers compensation and when is an employee a firefighter? or a paramedic? (July 30, 2015). If a person assaults a St John volunteer the question will be ‘are they considered a paramedic’ and if not, is that fair because the minimum sentence wouldn’t apply?

Paramedicine is a dangerous job. Whether it’s climbing into a car or train wreck, descending off a rope from a helicopter or enter a person’s home where, by definition things are going wrong and often because of the person’s own actions. It is because paramedics (and police, and fire fighters, and rescuers whether paid or volunteer) take on these risks that we the community value them and what they do. They deserve to be ‘safe’ but with any inherently dangerous job that safety cannot be guaranteed. And making the legal changes suggested here will go no way to making the job safer. The problem is that it might make paramedics think their concerns are being taken seriously and that governments are trying to protect them – but if they then go about their job feeling better and safer what they are suffering from is a placebo effect – they’ve taken the sugar pill but it’s not treating the problem.

Unpopular, and expensive as it is, the remedy is not in tougher criminal law; it’s in resourcing mental health and drug treatment. Recognising that these are health problems will necessarily involve the paramedics (and doctors and nurses and others) who work in the area of emergency and out of hospital health care.